(Delivered by Hon'ble Anil Kumar, J.) 1. Matter Is Taken in the Revised
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3 All] Dinesh Chand Pandey V. Shri Narain Pathak and others 1287 ORIGINAL JURISDICTION (Delivered by Hon'ble Anil Kumar, J.) CIVIL SIDE DATED: LUCKNOW 25.11.2010 1. Matter is taken in the revised cause list. BEFORE THE HON'BLE ANIL KUMAR, J. 2. None appeared on behalf of the Civil Revision No. 52 of 2001 answering respondents. Dinesh Chand Pandey and others Heard Sri U.S. Sahai, learned ...Petitioner counsel for the revisionist and perused the Versus record. Shri Narain Pathak and others ...Respondent 3. Facts in brief as submitted by the Counsel for the Petitioner: learned counsel for the revisionist are that Sri U.S. Sahai initially a regular suit (Suit No. 107 of Sri D.C. Mukharji 1994) filed by plaintiff/O.P. Nos. 1 to 18 in the court of IVth Additional Chief Counsel for the Respondent: Judicial Magistrate/Additional Civil Sri D.C. Mukharjee Judge (Sr. Div.), Sultanpur in which the present revisionists are defendants. Code of Civil Procedure Order XIV Rule 2 as amended by Act No. 104 of 1976- 4. On the basis of pleadings, the Rule 2 (2)-Preliminary issue-regarding issues were framed by the trial court and bar of 22 of U.P. Intermediate Act 1921 and Section 14 of payment of issue No. 5 and 6 are as under:- salary Act-trial Court rejected the request for decision of preliminary (a) whether the present suit is barred issue as first-held-Trail Court not in view of the provisions as provided exercised its discretion properly-an under Section 22 of the U.P. Intermediate issue of law and jurisdiction be Education Act, 1921. decided first-order passed by Trial Court set-a-side. (b) Whether the present suit is barred Held: Para 18 as per the provisions as provided under Section 14 of Payment of Salaries Act, In view of the abovesaid facts and 1971. legal position which has been stated in the preceding paragraphs, and from a perusal of sub- Rule 2 Order 14 it is 5. The trial court thereafter decided clear that an issue of law may be tried the abovesaid issues as well as issue No. 7 as a preliminary issue provided it (whether a suit in question is liable to be relates to the jurisdiction of the Court dismissed on the ground of non-joinder of or to a bar to the suit created by law necessary parties) as preliminary issue for the time being in force. and by means of the impugned order Case law discussed: AIR 1988 All 299, 1995 (13) LCD 252, 2009 dated 11.01.2010 has held that the issue All. C.J. 1370 Nos. 5 and 6 are a mixed question of law and fact, so the same shall be decided later on and accordingly a request has 1288 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 been made by the defendant-revisionist to Rule 2(2) CPC and keeping in view the decide the same as preliminary issue has said fact whether the impugned order been rejected Whereas issue No. 7 was passed by the trial court in the instant case also decided against the is in accordance with law or not? defendant/respondent. 9. In order to adjudicate and decide 6. Aggrieved by the order dated the abovesaid question whether a issue is 11.01.2001, the present revision has been to be heard and decided as a preliminary filed before this Court. issue by a Court or not, I feel appropriate to have a glance to the provisions of order 7. Sri U.S. Sahai, learned counsel XIV Rule 2 CPC:- for the revisionist while challenging the impugned order submits that the 10. Order XIV, Rule 2 of the Code impugned order dated 11.01.2001 passed of Civil Procedure as it stood prior to the by trial court is contrary to law because as amendment made in the year 1976 read as per the provisions as provided under order follows:-- 14 Rule 2(2) CPC, the trial court has to decide the issue Nos. 5 and 6 as a "R. 2. Where issues both of law and preliminary issue in view of the fact that of fact arise in the same suit, and the the same is based on question of law Court is of opinion that the case or any because the suit filed by the plaintiff/O.P. part thereof may be disposed of on the Nos. 1 to 18 is barred as per the issues, of law only, it shall try those issues provisions as provided under Section 22 first, and for that purpose may, if it thinks of the U.P. Intermediate Education Act, fit, postpone the settlement of the issues 1921 read with Section 14 of the Payment of fact until after the issues of law have of Salaries Act. So, the same is liable to been determined." be quashed. 11. Under the above provision once 8. I have heard Sri U.S. Sahai, the court came to the conclusion that the learned counsel for the revisionist and case or any part thereof could be disposed gone through the record, the sole and of on the issues of law only it was obliged mute question which is to be decided in to try those issues first and the other the present case whether in view of the issues could be taken up only thereafter, if provisions as provided under order 14 necessity survived. The court had no Rule 2(2) CPC, the issue Nos. 5 and 6 discretion in the matter. This flows from which has been framed in the instant case the use of the word "it shall try those (to the effect that whether the suit in issues first". question is barred by the provisions as provided under Section 22 of the U.P. Material change has been brought Intermediate Education Act, 1921 and the about in legal position by amended 0.14, suit in question is barred as per the R. 2 and after the amendment made by provisions of Section 14 of the Payment Act 104 of 1976 which came into effect of Salaries Act, 1971) should be decided on 1-2-1977, the Order XIV Rule 2(2) as preliminary issue in view of the CPC is as follow:- provisions as provided under Order 14 3 All] Dinesh Chand Pandey V. Shri Narain Pathak and others 1289 "R. 2(1) Notwithstanding that a case 14. Thus, Sub-rule (2) leaves may be disposed of on a preliminary discretion upon the Court. It is not issue, the Court shall subject to the mandatory on the Court to decide the provisions of sub-rule (2), pronounce question of the jurisdiction or other issues judgment on all issues. relating to the maintainability of the suit. Sub rule (I) of Rule 2 mandates a Court (2) Where issues both of law and of that not with standing that a case may be fact arise in the same suit, and the court is disposed of on a preliminary issue, the of opinion that the case or any part thereof Court shall, subject to the provisions of may be disposed of on an issue of law sub-rule (2), pronounce judgment on all only, it may try that issue first if that issue issues. relates to 15. The intention of the Legislature is (a) the jurisdiction of the Court, or that instead of prolonging the suit by first deciding a preliminary issue and thereafter (b) a bar to the suit created by any deciding other issues, be avoided as far as law for the time being in force, possible, if all the issues are decided that may avoid unnecessary multiplicity of the and for that purpose may, if it thinks proceedings in relation to deciding the fit, postpone the settlement of the other preliminary issue. It is open for the Court, issues until after that issue." however, in some circumstances if it is apparently clear that the suit is not 12. The word "shall" used in old maintainable or barred by jurisdiction, to 0.14, R. 2 has been replaced in the present dispose of such issue, may decide such Rule by the word "may". Thus now it is issues as preliminary issue. discretionary for the Court to decide the issue of law as a preliminary issue or to 16. In the case referred of M/s. Ram decide it along with the other issues. It is Babu Singhal v. M/s. Digamber Parshad no longer obligatory for the Court to Kirti Parshad. AIR 1988 All 299. It has decide an issue of law as a preliminary been held in "paragraphs 6" as under:-- issue. "However, when the Court comes to 13. Another Change brought about the conclusion that the question of by the amended provision is that not all jurisdiction of the Court depends upon the issues of law can be decided as detailed evidence of the parties which are preliminary issues. Only those issues of almost identical with the matter which law can be decided as preliminary issues relates to other issues in the suit and the which fell within the ambit of Clauses (a) Court comes to the conclusion that this and (b) of sub-r. (2) of R.2 of O. 14. Cl. could not be decided as a preliminary (a) mentions "jurisdiction of the Court" issue it cannot be said that the Court and clause (b) deals with "bar to the suit committed any error of jurisdiction or created by any law for the time being in illegality.